Rudometkin v. Wormuth

• Court: District Court, District of Columbia
• Decided: March 21, 2025
• Docket: Civil Action No. 2022-1968
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAVID J. RUDOMETKIN,

Plaintiff,

v. Civil Action No. 22-cv-1968 (TSC)

CHRISTINE WORMUTH,

Defendant.

MEMORANDUM OPINION

Plaintiff David Rudometkin brought this action against Christine Wormuth, in her capacity

as Secretary of the United States Army. He seeks to compel Defendant to disclose records related

to his military service, his court-martial proceedings, and individuals involved in his court-martial

proceedings. Defendant filed a partial motion to dismiss. Mem. in Supp. of Def.’s Partial Mot. to

Dismiss at 1, ECF No. 50-1 (“Def.’s MTD”). For the following reasons, the court will GRANT

in part and DENY in part Defendant’s motion.

I. BACKGROUND

This case has a complicated procedural history. Plaintiff, a military prisoner at the U.S.

Disciplinary Barracks in Fort Leavenworth, Kansas, Def.’s MTD at 1, filed his Complaint in July

2022, alleging that the U.S. Department of the Army (“U.S. Army”) failed to adequately respond

to his numerous FOIA requests, Compl. ¶¶ 10–30, ECF No. 1. Then, proceeding pro se, Plaintiff

sought to amend his complaint on several occasions, with varying success. See, e.g., Am. Compl.,

ECF No. 5; Mot. for Leave to Amend, ECF No. 19; Mot. to Amend Second Am. Compl., ECF No.

37. Ultimately, on May 7, 2024, the court granted Plaintiff leave to file a Third Amended

Complaint, now “the operative complaint in this litigation.” May 7, 2024 Min. Order; see Third

Page 1 of 9 Am. Compl., ECF No. 45 (“3d Am. Compl.”). The allegations contained therein form the basis of

this court’s decision on Defendant’s motion to dismiss.

Plaintiff alleges that he submitted at least eighteen FOIA requests seeking records from

various U.S. Army departments about himself and his court-martial proceedings before Lieutenant

Colonel Richard Henry (“LC Henry”). 3d Am. Compl. ¶¶ 1, 10–30. Plaintiff claims that he

exhausted administrative remedies for certain requests. Id. ¶¶ 10, 11, 18–19, 27. He brings a claim

against each department to which he allegedly submitted a FOIA request and assigns each

department an alphabetical identifier. Id. ¶¶ 1, 10–30. 1 Defendant moves to dismiss claims (a)

through (e), corresponding to nine FOIA requests, for failure to state a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6). Def.’s MTD at 2. Plaintiff concedes that Defendant adequately

responded to and agrees to dismiss the following requests: two requests to the U.S. Army Office

of the Judge Advocate General, asserted in Claim (a); one request to the U.S. Army Review Boards

Agency, asserted in Claim (b); all requests to the U.S. Army Personnel Control Facility, asserted

in Claim (c); and all requests to the U.S. Army Human Resources Command, asserted in Claim

(e). 3d Am. Compl. ¶¶ 12, 13, 14, 20, 24; Pl.’s Opp’n to Def.’s MTD at 16–17, ECF No. 56 (“Pl.’s

Opp’n”). The remaining claims subject to Defendant’s motion to dismiss are:

• Claim (a): Plaintiff’s request to the U.S. Army Office of the Judge Advocate General for all administrative disciplinary actions against LC Henry. Id. ¶¶ 10. Plaintiff attaches an April 11, 2023 memorandum (hereinafter, “April 11 Memorandum”) he allegedly sent to the U.S. Army Office of General Counsel regarding this request and the related administrative appeal. 3d Am. Compl. App’x at 1–2. Plaintiff also purports to “incorporate[] by reference” an earlier complaint raising this FOIA request in another action. 3d Am. Compl. ¶ 10 (discussing Rudometkin v. United States, No. 20-cv-2687

1 Plaintiff’s claims involve requests from (a) U.S. Army Office of the Judge Advocate General, (b) U.S. Army Review Boards Agency, (c) U.S. Army Personnel Control Facility, (d) U.S. Army Trial Defense Service, (e) U.S. Army Human Resources Command, (f) Assistant Secretary of the Army for Acquisition Logistics and Technology, and (g) U.S. Army Aviation and Missile Command. 3d Am. Compl. ¶¶ 10–30. Certain claims contain multiple FOIA requests. Id. Because both parties identify claims by Plaintiff’s alphabetical identifier, the court will do the same.

Page 2 of 9 (TSC), (D.D.C. Sep. 15, 2020)). When Plaintiff amended his complaint in that case, he dropped this request. Rudometkin v. United States, No. 20-cv-2687 (TSC), slip op. at 2 n.1 (D.D.C. Sep. 19, 2022), ECF No. 43. Accordingly, the court did not address whether Plaintiff stated a FOIA claim. Id. (“The amended complaint neither mentions a request for Henry’s records nor incorporates the original pleading by reference.”). 2

• Claim (d): Plaintiff’s request to Major Jessica Kettl, his former defense counsel, for all attorney-client communications. 3d Am. Compl. ¶ 21. Plaintiff attaches a certification from Major Kettl stating that she provided Plaintiff with his entire case file and there are no remaining electronic communications to provide. 3d Am. Compl. App’x at 6.

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a complaint.”

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To survive such a motion, a “complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim has facial plausibility when the facts pleaded allow “the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.” Id. The court “may consider not only the facts alleged in the complaint, but also

documents attached to or incorporated by reference in the complaint.” Demissie v. Starbucks Corp.

Off. & Headquarters, 19 F. Supp. 3d 321, 324 (D.D.C. 2014) (citation omitted).

“FOIA provides a ‘statutory right of public access to documents and records’ held by

federal government agencies.’” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 602 F.

Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)).

Federal agencies must comply with requests to make records available to the public, unless such

2 In July 2023, this court granted summary judgment for defendants on the other FOIA requests at issue in that case, see Rudometkin v. United States, No. 20-cv-2687 (TSC), 2023 WL 4762574 (D.D.C. July 26, 2023). Plaintiff’s appeal is currently pending before the D.C. Circuit. See Rudometkin v. United States, No. 23-5180 (D.C. Cir. Aug. 11, 2023).

Page 3 of 9 “information is exempted under [one of nine] clearly delineated statutory [exemptions].” Id.

(internal quotation marks omitted); see also 5 U.S.C. §§ 552(a)–(b). “To state a claim under FOIA,

[plaintiffs] must plausibly allege ‘that an agency has (1) improperly; (2) withheld; (3) agency

records.’” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 922 F.3d 480, 486 (D.C.

Cir. 2019) (quoting Competitive Enter. Inst. v. Off. of Sci. & Tech. Pol’y, 827 F.3d 145, 147 (D.C.

Cir. 2016)). Courts also treat the “exhaustion of administrative remedies . . . as an element of a

FOIA claim, which, as with all elements of any claim,” must be sufficiently alleged to survive a

Rule 12(b)(6) motion. See Bonner v. Soc. Sec. Admin., 574 F. Supp. 2d 136, 139 (D.D.C. 2008).

III. ANALYSIS

Although Plaintiff brings this action against Christine Wormuth in her official capacity as

Secretary of the Army, the court’s jurisdiction under FOIA is “limited to enjoining agency

noncompliance.” Whittle v. Moschella, 756 F. Supp. 589, 596 (D.D.C. 1991) (citing 5 U.S.C.

§ 552(a)(4)(B)). A FOIA claim cannot be brought against an individual federal official. Id. Given

the liberal pleading standards for pro se litigants, the court will construe Plaintiff’s Third Amended

Complaint as a FOIA action against the U.S. Army. See Boyd v. Trump, 478 F. Supp. 3d 1, 5

(D.D.C. 2020) (construing FOIA action against individual government officials as raising FOIA

claims against corresponding agencies).

A. Claims Dismissed with Plaintiff’s Consent

For the FOIA requests in Claims (a), (b), (c), and (e) that Plaintiff no longer disputes and

agrees to dismiss, 3d Am. Compl. ¶¶ 12, 13, 14, 20, 24; Pl.’s Opp’n at 16–17, there is no case or

controversy to sustain the court’s jurisdiction. See Shapiro v. U.S. Dep’t of Just., 239 F. Supp. 3d

100, 106 n. 1 (D.D.C. 2017) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). The

court will dismiss these claims for lack of subject matter jurisdiction and deny Defendant’s motion

to dismiss under Rule 12(b)(6) as moot. Defendant does not raise any argument to dismiss the Page 4 of 9 second FOIA request raised in Claim (b), seeking Army Grade Determination Review Board

records regarding LC Henry. Def.’s MTD at 9. Accordingly, that portion of Claim (b) survives

Defendant’s motion to dismiss.

B. Claim (a): LC Henry Disciplinary Records Request

Defendant argues that Plaintiff’s request to the U.S. Army Office of the Judge Advocate

General for LC Henry’s disciplinary records fails to adequately allege (1) an improper

withholding, and (2) that he administratively exhausted the request. Def.’s MTD at 4–8. Drawing

all reasonable inferences in Plaintiff’s favor, the court disagrees.

First, Defendant insists that Plaintiff’s complaint “contains no reference to his having

submitted a FOIA request.” Id. at 4. To the contrary, it alleges that Plaintiff submitted a “FOIA

request” for “records pertaining to MAJ Henry . . . concern[ing] any disciplinary records.” 3d Am.

Compl. ¶ 11. And, in the April 11 Memorandum that Plaintiff submitted to the U.S. Army Office

of the General Counsel, which he attaches and incorporates by reference in his Third Amended

Complaint, he summarizes the request and Defendant’s response. See 3d Am. Compl. App’x. at

1–2. Accepting his allegations as true, Plaintiff submitted a request for “disciplinary records of

[his] military trial judge and jury Lieutenant Colonel Richard J. Henry” on December 26, 2018.

Id. at 1. On January 25, 2019, the Office of the Judge Advocate General’s Professional Branch

issued a “denial of records.” Id. Plaintiff challenges the withholdings pursuant to Exemption 5

and the deliberative process privilege. Id. at 2. In sum, Plaintiff alleges that (1) he submitted a

FOIA request for all disciplinary records concerning LC Henry, (2) Defendant failed to disclose

records responsive to that request, and (3) Defendant improperly withheld responsive material

under Exemption 5 and the deliberative process privilege. Taken together, these allegations

sufficiently state a FOIA claim. See Cause of Action Inst. v. IRS, 390 F. Supp. 3d 84, 102 (D.D.C.

2019). Defendant remains free to offer evidence that it properly withheld records subject to Page 5 of 9 Plaintiff’s FOIA request and that it is entitled to judgment as a matter of law. Id. At the pleadings

stage, however, Plaintiff has “satisfied the ‘quite straightforward’ and ‘relatively easy’ requirement

of ‘plead[ing] the . . . elements of a FOIA claim.’” Id. (quoting Campaign for Accountability v.

U.S. Dep’t of Just., 278 F. Supp. 3d 303, 312 (D.D.C. 2017)). Because Plaintiff’s Third Amended

Complaint contains adequate allegations, the court need not address his purported incorporation

of the Complaint in Rudometkin v. United States, No. 20-cv-2687 (TSC), 2023 WL 4762574

(D.D.C. July 26, 2023).

Defendant alternatively argues that “Plaintiff fails to plead facts sufficient to plausibly

establish that he has administratively exhausted such claims.” Def.’s MTD at 5. “[C]ourt[s] must

decline to decide the merits of an unexhausted FOIA claim when the plaintiff fails to comply with

procedures for administrative review . . .” Nat'l Sec. Couns. v. CIA, 931 F. Supp. 2d 77, 99–100

(D.D.C. 2013). FOIA requires an agency to determine whether to comply with a FOIA request

within 10 days. Wonders v. Dep’t of the Army Off. of Gen. Couns., 749 F. Supp. 3d 122, 129

(D.D.C. 2024) (citing 5 U.S.C. § 552(a)(6)(A)(i)). In the event of an adverse determination, the

requester may appeal and “the agency must ‘make a determination’ on any appeal within 20 days.”

Id. (citing 5 U.S.C. § 552(a)(6)(A)(ii)). “Courts have consistently confirmed that the FOIA

requires exhaustion of this appeal process before an individual may seek relief in the courts.” Id.

(quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61–62 (D.C. Cir. 1990)). FOIA's exhaustion

requirement provides the agency with “an opportunity to exercise its discretion and expertise on

the matter and to make a factual record to support its decision.” Khine v. U.S. Dep't of Homeland

Sec., 334 F. Supp. 3d 324, 333 (D.C. Cir. 2018) (quoting Oglesby, 920 F.2d at 61).

Plaintiff sufficiently alleges that he exhausted the appeal process for his FOIA request for

LC Henry’s disciplinary records. Based on the April 11 Memorandum, the Office of the Judge

Page 6 of 9 Advocate General refused to produce the requested records on January 25, 2019. 3d Am. Compl.

App’x at 1. Plaintiff alleges that he appealed that determination on May 26, 2020 and Defendant

issued an administrative appeal decision on June 29, 2020. Id. (“[T]he undersigned submitted an

updated appeal memo that addresses the disclosure of LTC Henry’s disciplinary records” and “the

Satriano appeal memo addresses both of the undersigned’s FOIA requests.”). Because a separate

declaration from Defendant’s Office of General Counsel suggested that Plaintiff had not

adequately appealed the request for LC Henry’s disciplinary records, he asked Defendant to

confirm that the June 29, 2020 administrative appeal decision addressed that FOIA request. Id. at

2. Plaintiff alleges that Defendant failed to respond to his requests for clarification. 3d Am.

Compl. ¶ 11. In these circumstances, and construing the allegations in Plaintiff’s favor, he

sufficiently alleges that he appealed Defendant’s adverse determination and either obtained

Defendant’s final decision or Defendant failed to respond to his appeal within the statutory

mandated time. Either way, Plaintiff plausibly pleads exhaustion of administrative remedies.

To the extent Defendant argues that Plaintiff failed to exhaust because he did not comply

with its appeal rules or procedures, exhaustion does not bar judicial review in those circumstances.

Elec. Priv. Info. Ctr. v. IRS, 910 F.3d 1232, 1239 (D.C. Cir. 2018). Exhaustion of a FOIA request

is not jurisdictional and “applies only if its underlying purposes ‘support such a bar.’” Id. at 1239

(citing Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004)). Plaintiff gave Defendant “the

opportunity to reconsider its position and bring its expertise to bear” before seeking judicial

review, id. at 1239, even requesting clarification on Defendant’s appeal decision, 3d Am. Compl.

¶ 11. Defendant’s failure to respond “manifests that the administrative process had run its course.”

Elec. Priv. Info. Ctr., 910 F.3d at 1239. Therefore, exhaustion does not prevent judicial review

Page 7 of 9 and the court will deny Defendant’s motion to dismiss Plaintiff’s challenge to his FOIA request

for records regarding LC Henry.

C. Claim (d): Major Kettl’s Emails Request

Defendant also moves to dismiss Plaintiff’s claim regarding his request for his former

defense lawyer’s emails, arguing that Plaintiff fails to allege that he submitted a FOIA request for

those records. Def.’s MTD at 8. On this count, the court agrees. “It is axiomatic that an agency

has no obligation to respond to a request that it did not receive.” Jarvis v. U.S. Dep’t of Hous. &

Urb. Dev., 310 F. Supp. 3d 79, 83 (D.D.C. 2018) (quoting Willis v. U.S. Dep’t of Just., 581 F.

Supp. 2d 57, 68 (D.D.C. 2008)). To state a FOIA claim, Plaintiff must allege that he sent a FOIA

request to the agency and that the agency received the FOIA request. Banks v. Lappin, 539 F.

Supp. 2d 228, 235 (D.D.C. 2008) (“It cannot be said that an agency improperly withheld records

if the agency did not receive a request for those records.”); Boyd, 478 F. Supp. 3d at 5 (“A FOIA

claim fails if the plaintiff never sent a FOIA request to the agency.” (citation omitted)). Plaintiff

alleges that he “attempted to request attorney-client communications from [his] military defense

counsel Major Jessica Kettl.” 3d Am. Compl. ¶ 21. But Plaintiff provides no correspondence or

documents to corroborate that he made a FOIA request. He attaches a certification from Kettl to

his Third Amended Complaint, in which she certifies under “penalties of perjury” that she provided

“Rudometkin with his entire client file,” including notes, electronic communications, investigation

materials, research, and court documents, and “[t]here are no additional electronic

communications.” 3d Am. Compl. App’x at 6. On this record, the most the court can infer is that

Plaintiff requested records from Kettl, not Defendant. The court refuses to transform Plaintiff’s

request to his lawyer, likely covered by attorney-client privilege, into a FOIA request. Construing

a client’s request for information from defense counsel in court-martial proceedings to impose

FOIA obligations would raise serious due process concerns and risk interfering with the right to Page 8 of 9 counsel under the Uniform Code of Military Justice and the U.S. Constitution. See 10 U.S.C.

§ 838 (“The accused has the right to be represented in his defense before a general or special court-

martial . . .”); Burns v. Lovett, 202 F.2d 335, 344 (D.C. Cir. 1952) (holding UCMJ procedures for

“[a]ppointment of counsel . . . satisfies constitutional requirements.”); United States v. Coleman,

72 M.J. 184, 186 (C.A.A.F. 2013) (discussing “accused’s constitutional right to due process” in

court-martial proceedings); Weiss v. United States, 510 U.S. 163, 177 (1994) (“Congress, of

course, is subject to the requirements of the Due Process Clause when legislating in the area of

military affairs, and that Clause provides some measure of protection to defendants in military

proceedings.”). Plaintiff’s vague allegations cannot justify undermining the foundational rights

safeguarding individual liberty. He also cannot use this litigation to create a new FOIA request.

See, e.g., Amiri v. Nat’l Sci. Found., 664 F. Supp. 3d 1, 24 (D.D.C. 2021) (“[A] requester may not

expand the scope of his FOIA requests(s) during litigation.”). Plaintiff does not allege that he

submitted a FOIA request for Kettl’s emails. For this reason, he fails to state a FOIA claim. See,

e.g., Boyd, 478 F. Supp. 3d at 6; Thomas v. FCC, 534 F. Supp. 2d 144, 146 (D.D.C. 2008). The

court will therefore grant Defendant’s motion to dismiss this claim.

IV. CONCLUSION

For these reasons, the court will GRANT in part and DENY in part Defendant’s Motion to

Dismiss.

Date: March 21, 2025

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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